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A.P. JaIn and Three ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision Petition No. 276/1977
Judge
Reported in1978(11)WLN561
AppellantA.P. JaIn and Three ors.
RespondentState of Rajasthan
DispositionPetition dismissed
Cases ReferredBibhuti Bhutan Das Gupta Anr. v. State of West Bengal
Excerpt:
.....exactly of the type in respect of which section 397(2) of the new code expressly excludes the revisions.;revision dismissed. - - the facts in that case were like this. the division bench further assumed that a petition, of revision, like a petition of appeal, is 'a vested right, which cannot be affected adversely unless the legislature makes a special provision in this behalf'.with utmost respect to the learned judges, i am not aware of any authority for the view that a petition of revision is a vested right, like a right of appeal under the old code or the new code. the impugned order clearly represents one of the 'other steps in aid of the pending proceeding' which their lordships had in mind, while mentioning by way of illustration same of the steps which obviously amount to..........references. the division bench then posed the question whether these sections are appli-1 cable to cases pending on april 1, 1974 (when the new code came into force), and answered it, without much discussion, as follows,-therefore, the question is whether these sections, relating to appeals & revisions, are applicable to cases pending on 1-4-74, the trial of which is required to be held according to the provisions of the old code. there is no doubt that a procedural law can be made to operate retrospectively in the sense so as to apply it to pending cases but where the legislature has made a specific provision that all pending cases will be governed by the old code, we are of the opinion that the old code alone will apply in respect of appeals and revisions. a right of appeal is a vested.....
Judgment:

K.S. Sidhu, J.

1. This petition, purporting to have been filed under SECTIONs 397 and 482 of the Code of Criminal Procedure, 1973 (for short, the New Code), has arisen under the following circumstances.

2. The petitioners, 4 in number, are officers and employees of a public limited company known as Messrs Jaipur Udhyog Limited, Sawai Madhopur. They are facing trial in a summons case pending in the court of the Judicial Magistrate, Sawai Madhopur. The case was instituted on a complaint filed by the Inspector, Weights and Measures, Sawai Madhopur, on December 21, 1973. The pftitioners ate accused of the commission of various offences punishable under the Rajasthan Weights and Measures (Enforcement) Act, 1958, (No. 32 of 1958), and the Rules framed there under. On a prayer made by them in their application filed under Section 205 and 540A of the Code (foof Criminal Procedure, 1898 r short, the old Code), the Magistrate dispensed with the personal attendance of all the four accused and permitted them to appear by their pleader. He recorded their pleas under Sections 243 and 244 of the Old Code through their pleader Evidently, the pleader did not make the admission of guilt on behalf of the petitioners. That is why the Magistrate proceeded to record the statement of the complainant and of the witnesses produced by him in the trial He has already concluded the recording of evidence produced by the prosecution. The accused did not appear in person through out the recording of the evidence of the prosecution, for, as already stated, they have been exempted from personal attendance and permitted to appear by their pleader.

3. On conclusion of the prosecution evidence, the petitioners' pleader moved an application before the Magistrate praying that the petitioners be permitted to make their statements under Section 342 of the Old Code through their pleader. It is said that the said application mentions that no such circumstances have been brought on the record as would 'need particular explanation' by the petitioners. By his order dated September 14, 1977, the learned Magistrate dismissed the said application and directed the petitioners to appear before him in person to enable him to record their statements under Section 342 of the Old Code.

4. The present petition has been made by the accused to challenge the legality and propriety of the order dated September 14, 1977, passed by the learned Magistrate. The petitioners seek an order from this Court directing the Magistrate 'not to insist upon the such appearance of the accused petitioners' as directed by the Magistrate.

5. Mr. Bhargava, learned Counsel for the petitioners, submitted at the very out-set of his arguments that, though described as having been filed inter alia, under Section 397 of the New Code, the present application may be treated as an application under Section 435 of the Old Code, and that if so treated and dealt with, it would not be hit by the legal bar, newly introduced by Sub-Section (2) of Section 397 of the New Code, against exercise of powers of revision in relation to the impugned order passed by the learned Magistrate, even if it were to be assumed that the said order amounts to an 'interlocutory order' as contemplated by Section 397(2) of the New Code Learned Counsel pointed out in this connection that since the trial in the instant case was already pending in the court of the learned Magistrate, the said trial, as required by Sub-section (2) of Section 484 of the New Code 'shall be...held in accordance with the provisions of the Code of Criminal Procedure 1898 (i.e. the Old Code)...as if this Code (i.e. the New Code) had not come into force.' A petition of revision, as the present one, in counsel's opinion, is nothing but a proceeding in the pending trial, and must, therefore, be disposed of in accordance with the provisions of the Old Code. Counsel cited a Division Bench ruling of the Madhya Pradesh High Court reported Dhruvanathsingh v. Shivanaresh Sharma (1) : 1975 Cr.L.J. 1710, in support of his argument.

6. After giving my careful consideration to this argument and reading the report of the cited case, I am of opinion that the argument has to be rejected as unsound, both in law and principle. A bare perusal of the provisions of Section 484(2) of the New Code would show that it does not apply to a petition of revision which was not pending at the commencement of the New Code and that since the present petition was filed on October 19, 1977, i.e. long after the commencement of the New Code, there is no question of treating it as a pending petition for being continued and disposed of in accordance with the provisions of the Old Code. Section 484 of the New Code, in so far as it is material, for our present purpose, may be reproduced here,-

484 Repeal and savings (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.

(2) Notwithstanding such repeal,-

(a) if, immediately before the date on which this Code come* into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force:

Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Codes .

In terms of this saving clause, therefore, it is clear that what is saved is only an 'appeal, application, trial, inquiry or investigation pending' immediately before the date on which the New Code came into force, and not an appeal, application, trial, inquiry or investigation which was not so pending at that time. The present petition for revision was not pending at the commencement of the New Code. It is therefore, not saved by the saving clause for being dealt with under the Old Code.

7. While construing this saving clause in the manner indicated above, I am not being oblivious of the view that sometimes an appeal and even a revision is taken to be a continuation of the original suit or proceeding and, in that sense, in may be argued that the present revision being a continuation of the original proceedings in the trial must be disposed of in accordance with the provisions of the Old Code, In the instant case, however, it cannot by any stretch of construction, be urged that this particular revision is a continuation of the original trial. The present petition is pi only a proceeding which has arisen out of an interlocutory application made to the trial court for an order for further dispensing with the personal attendance of the petitioners in the trial and for permitting them to make statements under Section 342, if necessary, through the pleader. It will be seen that even if this application were to be allowed by this Court, the original prosecution in the trial court would not thereby be terminated or disposed of The main test, which determines whether an appeal or revision is a continuation of the original suit or proceeding, is to find out whether the decision in the appeal or revision would dispose of the said suit or proceeding in its entirety. If, notwithstanding the decision in such appeal or revision, the original suit or suit or proceeding still remained undecided and therefore pending in the inferior court, such appeal or revision, cannot, in law or logic, be described as a continuation of the original suit or proceeding.

8. As for the Madhya Pradesh ruling in Dhruvanathsingh's case (1) (supra), cited by the learned Counsel for the petitioners, I have read and reread it with all the respectful attention which it deserves. I am constrained to say that I have not been able to persuade myself to follow this ruling and accept the interpretation of Section 484 of the New Code, as given therein. The facts in that case were like this. One S filed a complaint against one D under Section 406 IPC On an application filed by D on September 24, 1973, the Magistrate passed an order under Section 94 of the Old Code directing S to produce certain documents and records Thereafter, on April 19, 1974, S applied for review of the above order so as to dispense with the production of those documents and records by him. The Magistrate allowed the said application and reviewed his earlier order. Aggrieved by the order of review, D filed a petition of revision before the Sessions Judges who dismissed the same vide his order dated December 8, 1974. D then challenged the dismissal in the High Court of Madhya Pradesh by way of a writ petition under Article 227 of the Constitution of India. The Division Bench of the High Court declined to entertain the writ petition, but, instead, registered it as a revision petition under Sections 435 and 439 of the Old Code, holding that since an alternative and efficacious remedy was available by way of revision,, the writ petition was not competent After giving these facts in their judgment, the Division Bench reproduced a large number of sections including 4 Section 484 of the New Code, dealing with appeals, revisions and references. The Division Bench then posed the question whether these sections are appli-1 cable to cases pending on April 1, 1974 (when the New Code came into force), and answered it, without much discussion, as follows,-

Therefore, the question is whether these sections, relating to appeals & revisions, are applicable to cases pending on 1-4-74, the trial of which is required to be held according to the provisions of the old Code. There is no doubt that a procedural law can be made to operate retrospectively in the sense so as to apply it to pending cases But where the Legislature has made a specific provision that all pending cases will be governed by the old Code, we are of the opinion that the old Code alone will apply in respect of appeals and revisions. A right of appeal is a vested right, which cannot be affected adversely unless the Legislature makes a special provision in that behalf There being no such special provision, the right of appeal will be governed by the old Code and the provisions of the new Code relating to appeals and revisions will apply only to those cases, which were not pending on 1-4-1974, but which have been instituted on 1-4-1974 or onwards. Therefore, we are of the opinion that the bar of Section 397(2) or Section 399(3) of the new Code will not be applicable to such pending cases and the matter will be governed by the provisions of Section 435 and Section 439 of the old Code.

It will be seen that the question posed is begging the answer, for, the Division Bench were assuming that the writ petition, which they were treating as a revision petition, was 'case pending on April 1, 1974, the trial of which is required to be held asserting to the provisions of the Old Code.' The D vision Bench repeated a little later this since pending cases were governed by the Old Code, 'we are of the opinion that the old Code alone will apply in respect of appeals and revisions'. No reason is given for equating a petition of revision with the original case pending in the inferior court on April 1, 1974. Ten revision petition, which arose out of an interlocutory order passed by the inferior court, could not, even if it were to be allowed, terminate or finally dispose of the case pending in the inferior court. It could not, therefore, be treated as a continuation of the proceedings of the case pending in the inferior court. The Division Bench further assumed that a petition, of revision, like a petition of appeal, is 'a vested right, which cannot be affected adversely unless the Legislature makes a special provision in this behalf'. With utmost respect to the learned Judges, I am not aware of any authority for the view that a petition of revision is a vested right, like a right of appeal under the Old Code or the New Code.

9. In view of the foregoing discussion, it is not possible, in law or principle, to predicate of this revision as a proceeding in continuation of the trial which was pending at the commencement of the New Code. This revision is, therefore, not saved by the saving clause embodied in Section 484 of the New Code. It must, therefore, be disposed of in accordance with the provisions of the New Code.

10. Under the New Code, the present petition is expressly barred by Sub-section (2) of Section 397, which enjoins that 'the powers of revision conferred by Sub-section (1) shall not be exercised in relation to an interlocutory order passed in any appeal, inquiry, trial or other proceeding'. Mr. Bhargava then argued that the impugned order is not 'interlocutory order' inasmuch as, according to him, it takes away the petitioner's right to enter appearance in the court by, and make statements under Section 342 of the Old Code through, their pleader. This argument is obviously fallacious, for, counsel is wrongly equating a 'granted privilege' with a 'legal right'. The exemption granted to the petitioners from personal attendance under Section 205 of the Old Code was a privilege which the court could withdraw at any time. In fact, Section 205(2) itself makes provision for such withdrawal in, that it lays down that the Magistrate may 'in his discretion, at any such stage of the proceeding, direct the personal attendance of the accused, and if necessary, enforce such attendance in the manner hereinbefore provided'. In law, there cannot possibly be a right without a co-relative duty. The privilege of exemption from personal attendance granted to the petitioners by the Magistrate under Section 205 does not impose a corresponding duty on the Magistrate not to interfere with the said exemption. On the contrary, the law has conferred a power on the Magistrate to withdraw the exemption and thus impose a legal obligation on petitioners to enter personal appearance. The argument that the impugned order has deprived the petitioners of any right, must, therefore, be rejected as wholly untenable.

11. In Amarnath v. State of Haryana (2) : 1977CriLJ1891 , the Supreme Court has, without attempting to define the expression 'interlocutory order', provided enough aid to the understanding of the correct meaning of this expression. For example, their Lordships have observed,-

In Webster's New World Dictionary, 'interlocutory' has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the right and liabilities of the parties concerning a particular aspect. It seems to us that the term 'interlocutory order' in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important frights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or, a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

The impugned order clearly represents one of the 'other steps in aid of the pending proceeding' which their Lordships had in mind, while mentioning by way of illustration same of the steps which obviously amount to 'interlocutory order'. So far as the impugned order is concerned, it does not affect or touch any right of the petitioners. It merely directs them to attend the court in person so that their statements under Section 342 of the Old Code could be recorded in aid of the proceedings in the trial. There cannot, therefore, be any doubt that the impugned order is an 'interlocutory order', pure and simple, exactly of the type in respect of which Section 397(2) of the New Cede expressly excludes the revisional jurisdiction under Section 397(1).

12. Mr. Bhargava then cited another Supreme Court ruling reported as Smt. Parmeshwari Devi v. State and Anr. (3) : [1977]2SCR160 . He cited this ruling in an endeavour to show that a situation may sometimes arise justifying the resort to the revisional jurisdiction of the High Court to get rid of an order passed by the inferior court, which, though not conclusive of the main case pending in that court, may cause injustice, if allowed to stand. A careful study of the cited case would show that the impugned order in that case was conclusive as to the lady who was not a party to the case in which that order had been passed, and, therefore, she would not have had any to opportunity of challenging it after the final order disposing of that case, had been passed by the trial court. In the instant case, the position is entirely*! different, for, the petitioners are parties to the proceedings of trial as accused persons, and therefore, it would be open to them to assail the final verdict in the trial if it gees against them on various grounds including the grounds which form the subject matter of their present grievance.

13. As a last resort, learned Counsel for the petitioners referred to Section 482 of the New Code corresponding to Section 561A of the Old Code and contended that if the jurisdiction of this Court to entertain this revision is barred under Section 397(2) of the New Code, it can always intervene and make orders in the exercise of its inherent powers to prevent, abuse of the process of any court or otherwise to secure ends of justice. It is true that in appropriate cases, this Court may, notwithstanding the provisions of Section 397(2), exercise its powers under Section 432 in relation to interlocutory orders, but, as pointed out by this Court in Bhanwarlal and Ors. v. Madanlal and Ors. (4) 1978 Cr.L.J. 697, inherent powers under Section 482 have to be exercised with due circumspection and in very rare cases subject to the limitations indicated in that ruling. After this Court had handed down its opinion in Bhanwarlal's case (4) (supra), the Supreme Court pronounced in Amur Moth's case (2) (supra), that 'where there is an express provision barring a particular remedy, the court cannot resort to the exercise of any inherent power.' This is not one of those 'very rare cases,' which this Court had in mind when speaking about the possibility of the exercise of inherent jurisdiction in Bhanwarlal's case (4) 'supra). It will be presently shown that the petitioners are seeking something, which, if allowed, will certainly interfere in the smooth and effective progress of the trial.

14. Reference was also mad by Mr. Bhargava to a few rulings of some High Courts which, at one time, had taken the view that Section 342 of the old Code does not apply to the trial of summons cases. I need not refer to or discuss those rulings, ror, so far as this Court is concerned, the matter stands concluded by Mst. Kusuma Deoi and Anr. v. Govind Singh and Anr. (5) . One of the questions which fell for decision in that case was whether Section 342 applies to an inquiry under Chapter VII of the Old Code This Court answered this question in the affirmative and made the emphatic observation in that contest that 'the examination of an accused in summons case is a part of a trial'. The further conclusion of the court, that the examination, under Section 342 Cr.P.C., of a person arraigned under Section 107 Cr.P.C., is necessary, was a conclusion, drawn as a matter of necessary corollary from the statement of law this 'the examination of an accused, in a summons case, is a part of a trial'. It is true that, technically speaking, this Court did not question the legality in rare cases of a pleader being examined in place of the accused, but it disapproved of such a course in very strong terms as follows,-

Once I come to this conclusion, I am further strongly of the opinion that there can be no substitute for the examination of the accused himself or herself at the stage at which he or she has to be examined. A pleader's examination on his behalf is and would be a very poor substitute for the examination of the arraigned person himself or herself. In these circumstances, I am disposed to hold the view that there is nothing wrong in the Magistrate calling upon the petitioner to put in her appearance in his Court for the purpose of her examination.

15. The Supreme Court has since gone a step further and held in Bibhuti Bhutan Das Gupta Anr. v. State of West Bengal (6) A.I.R. 1959 S.C. 381, as follow,

Even in a case where the Magistrate has dispensed with the personal appearance of the accused, a pleader cannot represent the accused, for purposes of Section 342 of the Criminal PG. Except where the accused is a Company or a juridical person and hence cannot be examined personally, in all other cases only the accused can be examined under Section 342 of the Criminal PC. Examination of a pleader is not sufficient compliance with Section 342.' See (foot note A).

There is nothing in the Supreme Court judgment to exclude a trial in a summons case from its purview. Of the other hind, reference in paragraph 9 of the cited judgment to Sections 242 and 243 relating to trial in a summons case, would indicate that the ratio of the judgment, as reproduced above, also applies to summons cases.

16. For all these reasons, I find that this petition is wholly groundless and must, therefore, be dismissed. I would order accordingly, and direct that the record of the case be returned to the trial court immediately for further proceeding according to law.


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